It was a pretrial deposition.

A question and answer session.

I was questioning a doctor.

In a medical malpractice case here in New York.

My client sued her doctor.

He violated the basic standards of medical care.

He was careless.

His carelessness caused her injury.

Her injuries were permanent.

I had a board certified medical expert who confirmed that we had a valid case.

This question and answer session was taking place in one of the defense lawyer's offices.

In his conference room to be exact.

There was no judge present.

There is no jury present.

Instead, there were five defense lawyers sitting around the conference room table.

The doctor who was the target of this lawsuit was sitting at the table.

A court reporter was there.

And of course, I was there.

A court reporter is there to record all of my questions and all of the doctor's answers.

A court reporter transcribes all of my questions and the doctor's answers and puts them into a booklet called a transcript.

This is the doctor's pretrial testimony.

This testimony can be used at trial in different ways.

You should know that during this pretrial deposition, I have a great deal of leeway in what questions I can ask the doctor.

Even if my question does not appear to be related or relevant to the claims in this case, I am still permitted to ask the question and the doctor is compelled to answer it. Whether I can use that information at trial a year later is a different issue.

When I question a doctor in a medical malpractice case, I have a certain agenda that I need to go through.

I need to have the doctor define certain medical terms.

I need the doctor to explain what the standard of care is for a particular situation.

I need the doctor to tell me why it's good medical practice to do A, B or C in a particular situation.

I also need the doctor to go through his medical records to explain what he did and why he did it.

Then, I need to ask the doctor hypothetical questions.

Questions that relate to this case.

Questions that put all the facts of our case together.

Questions that force the doctor to give opinions about whether the standard of care was violated given a certain set of facts.

It was this last segment of my questioning that got these five defense attorneys in a tizzy.

This was a relatively quiet and subdued questioning session.

I had already covered the basics.

"Doctor, what does good medical practice require when a patient comes into your office complaining of the following problems..."

"Would you agree it's important to keep accurate medical records?"

"Is it important to perform a thorough physical examination? Why?"

"Is it important for you to know what complaint brought the patient to you that day?"

"Did you record that information somewhere?"

You should know that a pretrial deposition can take many hours.

It can take a full day.

Sometimes it can take multiple days.

Other times, it will take only a few hours.

It's now been a few hours.

The doctor clearly does not like being there.

He doesn't like me.

He doesn't like being questioned.

His answers are clipped and staccato.

That's a sign that's he's been overly prepped by his attorney.

I want the doctor to verbalize and explain.

I need to know his reasons and rationale for treating my client the way he did.

Now it was time to ask him hypothetical questions.

It was time to ask him his medical opinion.

If I were to come right out and ask "Doctor, did you depart from good medical care in this case?" what do you think he'd say?

"Of course I didn't! Why are you asking me such a stupid question?"

Instead, I'd ask a series of questions like this...

"Doctor,  I want you to assume the following facts to be true...

1. Mrs. Jones felt a lump in her breast on April 10.

2. On April 15, she noticed the lump was larger.

3. On April 20, she called your office for an appointment.

4. On April 21, she came in for an emergency visit.

Would you agree that a patient who complains of a growing breast lump needs to be evaluated immediately?"

"Would you agree that the patient's complaint needs to be recorded?"
"Would you agree that failing to record the patient's chief complain would be a departure from good medical care?"


"OBJECTION! THAT'S IRRELEVANT!" Another lawyer screamed out.

"OBJECTION! THAT QUESTION IS NOT PROPERLY PHRASED!" Another defense attorney yelled at me.

This went on for another 15 seconds.

You'd have thought I asked some horrendous question.

You'd have thought I started World War III by asking such a simple question.

To be fair, it's not a great question.

I should correct that.

It's not a well-worded question.

The attorney who yelled that it was an improperly phrased question was closest to the mark.

I didn't do it on purpose.

It was just what I was thinking at that moment.

You should know that some attorneys love their own questions.

They love their own words so much, they refuse to change their question when an opposing attorney objects to the way its' phrased.

Personally, I think that's stupid.

It's stupid to argue with my adversary for 15 minutes about a question not being phrased properly.

"What's wrong with my question?" the attorney demands ot know.

"I'm not going to change my question just because you feel it's not proper."

"I don't have to ask a different question. I want an answer to my question!"

This is ridiculous.

Instead, I just rephrase my question.

If I get another objection about how I worded my question, I'll rephrase it another way. And another way. And another way.

You will find that the best trial attorneys can rephrase a question 10, 15 and 20 different ways.

It's quite simple.

I'll get the answer I want, but I may need to be a bit creative in asking the question.

It turns out that the defense attorneys didn't like me equating improper record keeping with improper medical care.

That's a fair comment.

The fact that a doctor didn't keep good medical notes does not automatically indicate he improperly treated my client that day.

However, it does show he was sloppy.

I will examine his record keeping throughout his treatment of my client.

It may show a pattern.

Then, if I can also show that the doctor was careless in properly treating my client, I can now use both the sloppy record keeping and the violations from the standards of good medical care to establish that this doctor was responsible for my client's injuries.

What did I do here after all these attorneys exploded by yelling and screaming about my hypothetical question?


I just rephrased the question and asked it a different way.

"Dr. Clumsy Hands, I want you to assume that Mrs. Jones complained of an elarged breast lump on April 21. I want you to assume that your physical examination confirmed she had an enlarged breast lump at the 12 O'clock position on the left breast. Would you agree that good medical practice required you send her for a breast sonogram? 

Would you also agree that good medical practice required her to get a breast mammogram?

Would you also agree that good medical practice required an evaluation by a breast surgeon?"

He has to say yes to all three of those questions.

"Doctor, would you agree that failure to send the patient for a sonogram & mammogram with those set of facts would be a departure from good medical care?"

'"OBJECTION! RELEVANCE," one attorney yelled.

"OBJECTION TO FORM," another attorney yelled out for the court reporter to note.

Yet the doctor's attorney turned to his client, Dr. Clumsy Hands and said "Go ahead doctor, you can ignore those attorneys and answer Mr. Oginski's question."

Why did the doctor's attorney tell his client to answer my question and ignore the other defense attorneys who objected?

Because the doctor is required to answer all of my questions, regardless of whether the defense attorneys object.

There are two exceptions to that rule.

The first is if I ask the doctor what he talked about with his attorney.

I can't ask that.

It's priviledged and confidential.

Actually, I can ask that.

However, if I do, I will always get an immediate objection from the defense lawyer claiming that any conversation between he and his client is confidential. He's right. It is.

The other exception is if I ask the doctor a question that is so off the wall that it defies giving a coherent answer.

Here's an example...

"Doctor, is it true that you beat your wife each night if she doesn't get you your milk and cookies?"

That question deserves a double take.

It deserves a "What the hell are you asking here?" comment.

"What does that have to do with the doctor's treatment of your client or our defenses in this medical malpractice case?"

If I were to ask such an off the wall question, the attorney would yell out "OBJECTION! THAT'S PALPABLY IMPROPER!" 

You know what?

He's right.

It is palpably improper and would be totally within his right not to answer that ridiculous question.

But beyond those two exceptions, the doctor must answer all my other questions.

I will continue asking hypothetical questions that put forth all of the facts that we believe to be more likely true than not true.

I will then ask the doctor if, under those sets of facts, he would agree that not doing X, Y or Z would be a departure from good medical care.

Getting back to the headline of this article..."5 Defense Attorneys Started Screaming at Me All at Once!" as soon as I rephrased my question, I eliminated the defense attorney's rabid objections.

They still didn't like that this doctor had to answer my questions that clearly established he did something improper if the facts of the case conformed to what I was describing.

At trial, I will ask the doctor similar hypothetical questions to establish that the doctor was responsbile for my client's injuries.

The defense will then also ask hypothetical questions using facts they believe to be true.

Then, at the end of the trial, the jury will have to determine whether the facts that we have described are more likely true than not true. If they are, then the doctor has confirmed he violated the basic standards of medical care and she'd be entitled to a verdict in her favor.

To learn about objections during trial testimony, I invite you to watch the quick video below...



Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer